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RECENT DEVELOPMENT
CLIMATE CHANGE LITIGATION: WHY
CALIFORNIA AND OTHER STATES MAY STOP
USING LAWSUITS TO FORCE REGULATION
OF GREENHOUSE GAS EMISSIONS UNDER
THE CLEAN AIR ACT
I. INTRODUCTION
Years after the United States Congress chose not to ratify
the Kyoto Protocol,1 there is still no federal regulatory scheme to
control greenhouse gas emissions and combat the threat of
climate change in the United States. The lack of federal
regulation of greenhouse gas emissions is troubling because the
United States is one of the largest emitters of greenhouse gases
in the world.2 Several states have tried to regulate greenhouse
gases on their own to fill the regulatory gap in the United States.
Some states have banded together and formed regional cap
3
and trade systems for carbon dioxide emissions. California has
tried to impose regulations on greenhouse gas emissions from
cars by asking the Environmental Protection Agency (“EPA”) for
1.
See Eric Pianin, 160 Nations Agree to a New Global Warming Treaty; U.S. Sits
Out Morocco Talks; Pact Sets Mandatory Targets for Reducing Greenhouse Gas Emissions,
WASH. POST, Nov. 11, 2001, at A25.
2.
NETH. ENVTL . ASSESSMENT AGENCY, GLOBAL CO2 E MISSIONS: INCREASE
2007
(2008),
CONTINUED
IN
http://www.mnp.nl/en/publications/2008/GlobalCO2emissionsthrough2007.html.
3.
Maine, New Hampshire, Vermont, Massachusetts, Connecticut, Rhode Island,
New York, New Jersey, Delaware and Maryland formed the Regional Greenhouse Gas
Initiative. Arizona, California, New Mexico, Oregon, Utah, Washington and two Canadian
provinces (British Columbia and Manitoba) formed the Western Climate Initiative. Ned
RAYNOLDS & C HRIS BUSCH, UNION OF CONCERNED SCIENTISTS , REGIONAL CAP- AND-T RADE
PPROGRAMS
TO
CUT
GLOBAL
WARMING
EMISSIONS ,
http://www.ucsusa.org/global_warming/solutions/big_picture_solutions/regional-cap-andtrade.html (last visited May 28, 2009).
157
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a waiver under the Clean Air Act (“CAA”).4 The EPA denied that
waiver request.5 Using litigation, various states have also tried
to force the federal government to regulate greenhouse gases
under the CAA. The landmark case of such state-led litigation
6
efforts is Massachusetts v. Environmental Protection Agency.
The Supreme Court held in Massachusetts that the EPA has
the authority to regulate greenhouse gas emissions from
7
automobiles under the CAA, but the EPA has been slow to
respond to the court decision.8 One year after Massachusetts,
several states decided to initiate more litigation to force the EPA
to regulate greenhouse gases. On July 31, 2008, several states
and environmental groups notified the EPA that they intended to
sue the agency for failing to regulate greenhouse gases from
ships, aircraft, and off-road vehicles.9 This potential lawsuit is
the focus of this article. Section II of the article lays out the
factual background underlying the potential lawsuit. Section III
analyzes the probability of the potential plaintiffs winning the
lawsuit. Section IV explains why the potential plaintiffs may not
actually file the lawsuit.
II. BACKGROUND UNDERLYING THE POTENTIAL LAWSUIT
On October 3, 2007, California and other government
petitioners submitted a rulemaking petition to the EPA,
pursuant to the Administrative Procedure Act, for regulation of
greenhouse gas emissions from marine vessels.10 On November
4, 2007, the same petitioners filed a similar rulemaking petition
11
for regulation of greenhouse gas emissions from aircraft. The
petitioners also filed a rulemaking petition for regulation of
4.
See Juliet Eilperin, EPA Chief Denies Calif. Limit on Auto Emissions: Rules
Would Target Greenhouse Gases, WASH. POST, Dec. 20, 2007, at A01.
5.
Id.
6.
Mass. v. Envtl. Prot. Agency, 549 U.S. 497, 528-29 (2007).
7.
Id.
8.
See Brad Knickerbocker, Bush’s ‘Caution’ on CO2 Seen as ‘Footdragging’ by
Critics, CHRISTIAN SCI. MONITOR, Apr. 3, 2008, at 17.
9.
Letter from Edmund G. Brown Jr., Attorney Gen., State of Cal., to Stephen
Johnson, Adm’r, Envtl. Prot. Agency & Margo T. Oge, Dir., Office of Transp. & Air
Quality,
Envtl.
Prot.
Agency
(July
31,
2008),
available
at
http://ag.ca.gov/globalwarming/pdf/180_day_notice.pdf; Letter from Martin Wagner,
Earthjustice, to Stephen Johnson, Adm’r, Envtl. Prot. Agency & Margo T. Oge, Dir., Office
of Transp. & Air Quality, Envtl. Prot. Agency (July 31, 2008), available at
http://www.earthjustice.org/library/legal_docs/notice-letter-08-07-28-final.pdf.
10.
The other government petitioners joining California were Connecticut, New
Jersey, Oregon, the Commonwealth of Pennsylvania Department of Environmental
Protection and the City of New York. Letter from Edmund G. Brown Jr. to Stephen
Johnson & Margo T. Oge, supra note 9, at 1.
11.
Id.
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greenhouse gas emissions from off-road vehicles on January 29,
2008.12 Earthjustice and other environmental groups submitted
their petition for regulation of greenhouses gases from marine
vessels on October 3, 2007.13 The environmental groups also filed
a petition for regulation of greenhouse gases from aircraft on
14
December 31, 2007. The EPA had 180 days from the filing of
the petitions to respond.15 The petitioners believed that the EPA
failed to provide adequate responses to the petitions within the
180 day period, establishing a cause of action in their potential
lawsuit against the EPA.16 On July 31, 2008, California, four
other states, and three environmental groups informed the EPA
of their intent to file a lawsuit against the agency.17 The four
states joining California in submitting the notice were
Connecticut, New Jersey, Oregon, and Pennsylvania18 The
environmental groups participating in the notice were Friends of
the Earth, the Center for Biological Diversity, and Oceana.19 In
their notices, the potential plaintiffs claimed that the EPA
unreasonably delayed the regulation of greenhouse gas emissions
from ships, aircrafts, and off-road vehicles,20 and neither granted
nor denied their rulemaking petitions.21 Furthermore, the EPA
also failed to initiate a rulemaking process in response to the
petitions; specifically, the EPA did not open a rulemaking
12.
Id.
13.
The other environmental groups joining Earthjustice were Oceana, Friends of
the Earth and Center for Biological Diversity. Letter from Timothy Ballo & Sarah Burt,
Earthjustice, to Stephen Johnson, Adm’r, Envtl. Prot. Agency (Oct. 3, 2007), available at
http://www.earthjustice.org/library/legal_docs/ship-greenhouse-pollution-petition-toepa.pdf.
14.
Letter from Alice R. Thomas, George M. Torgun & Martin Wagner, Earthjustice,
to Stephen Johnson, Adm’r. Envtl. Prot. Agency (Dec. 31, 2007), available at
http://www.earthjustice.org/library/legal_docs/petition-to-epa-on-aircraft-global-warmingemissions.pdf.
15.
Letter from Edmund G. Brown Jr. to Stephen Johnson & Margo T. Oge, supra
note 9; Letter from Martin Wagner to Stephen Johnson & Margo T. Oge, supra note 9.
16.
See Letter from Edmund G. Brown Jr. to Stephen Johnson & Margo T. Oge,
supra note 9; Letter from Martin Wagner to Stephen Johnson & Margo T. Oge, supra note
9.
17.
Letter from Edmund G. Brown Jr. to Stephen Johnson & Margo T. Oge, supra
note 9; Letter from Martin Wagner to Stephen Johnson & Margo T. Oge, supra note 9.
18.
Letter from Edmund G. Brown Jr. to Stephen Johnson & Margo T. Oge, supra
note 9, at 1.
19.
Letter from Martin Wagner to Stephen Johnson & Margo T. Oge, supra note 9,
at 1.
20.
Letter from Edmund G. Brown Jr. to Stephen Johnson & Margo T. Oge, supra
note 9, at 3; Letter from Martin Wagner to Stephen Johnson & Margo T. Oge, supra note
9, at 2.
21.
Letter from Edmund G. Brown Jr. to Stephen Johnson & Margo T. Oge, supra
note 9, at 2; Letter from Martin Wagner to Stephen Johnson & Margo T. Oge, supra note
9, at 2.
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docket.22
The EPA did issue an Advance Notice of Proposed
Rulemaking (“ANPR”) for Regulating Greenhouse Gas Emissions
23
However, the
under the Clean Air Act on July 11, 2008.
petitioners in this case claimed the EPA did not make the
required endangerment finding requested by the petitioners in
the ANPR.24 The petitioners also believed that the ANPR did not
actually begin the rulemaking process for regulation of
greenhouse gas emissions from ships, aircraft, and off-road
25
According to the petitioners, by failing to find that
vehicles.
greenhouse gases endanger public welfare and health under the
CAA and by not initiating a rulemaking process for regulation of
such gases, the EPA is failing to meet its performance obligations
under the CAA.26
Because of the EPA’s failure to regulate greenhouse gas
emissions in a timely manner under the CAA, the petitioners
believe they can compel agency action under Section 304(a)(3) of
the CAA.27 However, before the petitioners can actually file a
lawsuit to compel agency action for unreasonable delay, they
need to give the EPA 180 days notice prior to taking legal
action.28 The 180-day clock started ticking with the notice filed
by California and its fellow petitioners on July 31, 2008. 29
III. THE LIKELY OUTCOME OF THE LAWSUIT AND EPA’S LIKELY
22.
Letter from Edmund G. Brown Jr. to Stephen Johnson & Margo T. Oge, supra
note 9, at 2; Letter from Martin Wagner to Stephen Johnson & Margo T. Oge, supra note
9, at 2.
23.
Regulating Greenhouse Gas Emissions Under the Clean Air Act, 73 Fed. Reg.
44, 354 (proposed July 11, 2008) (to be codified at 40 C.F.R. ch. I).
24.
Letter from Edmund G. Brown Jr. to Stephen Johnson & Margo T. Oge, supra
note 9, at 2; Letter from Martin Wagner to Stephen Johnson & Margo T. Oge, supra note
9, at 3.
25.
Letter from Edmund G. Brown Jr. to Stephen Johnson & Margo T. Oge, supra
note 9, at 2; Letter from Martin Wagner to Stephen Johnson & Margo T. Oge, supra note
9, at 2.
26.
Letter from Edmund G. Brown Jr. to Stephen Johnson & Margo T. Oge, supra
note 9, at 3-4; Letter from Martin Wagner to Stephen Johnson & Margo T. Oge, supra
note 9, at 3.
27.
Letter from Edmund G. Brown Jr. to Stephen Johnson & Margo T. Oge, supra
note 9, at 12; Letter from Martin Wagner to Stephen Johnson & Margo T. Oge, supra note
9, at 2.
28.
Letter from Edmund G. Brown Jr. to Stephen Johnson & Margo T. Oge, supra
note 9, at 3; Letter from Martin Wagner to Stephen Johnson & Margo T. Oge, supra note
9, at 2.
29.
Letter from Edmund G. Brown Jr. to Stephen Johnson & Margo T. Oge, supra
note 9, at 3; Letter from Martin Wagner to Stephen Johnson & Margo T. Oge, supra note
9, at 2.
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RESPONSE TO THE OUTCOME
The EPA will likely lose the potential lawsuit if the states
and environmental groups actually file the lawsuit. The Supreme
Court has already held in Massachusetts that the EPA has the
regulatory authority to regulate greenhouse gases from cars
30
Once the EPA’s regulatory authority over
under the CAA.
greenhouse gases is established, the EPA has a legal obligation
under the CAA to decide whether it wants to regulate such
31
emissions. The EPA’s regulatory authority also means the EPA
has a legal obligation to respond to the rulemaking petitions of
the potential plaintiffs.
Under the CAA, the EPA cannot simply respond to
petitioners’ rulemaking petitions with inaction.32 The EPA must
respond to the rulemaking petition by either choosing to regulate
greenhouse gas emissions from ships, aircraft, and off-road
vehicles or choosing not to regulate such emissions. If the EPA
has not responded at all to the petitions for rulemaking, as
alleged by potential plaintiffs, a federal court will most likely
rule against the EPA in the potential lawsuit.
Assuming the EPA does lose the potential lawsuit in a
federal court, and assuming the EPA chooses not to appeal that
court decision, the EPA will be under significant legal pressure to
respond to the petitioners’ rulemaking petitions. If the EPA
responds to the rulemaking petitions negatively and chooses not
to promulgate regulations for greenhouse gas emissions from
ships, aircraft, and off-road vehicles, the EPA will have to
provide reasons explaining why it decided to do so. This is
unlikely as the EPA will have a difficult time explaining such a
decision. Explaining its decision not to regulate will be difficult
because EPA’s own staffers have already concluded that
33
greenhouse gas emissions endanger public health. Most likely,
the EPA will respond to the rulemaking petitions affirmatively if
they lose the potential lawsuit discussed above. The difficulty
lies in how to regulate greenhouse gas emissions under the CAA.
In fact, under the Bush administration, the EPA has already
been grappling with the complexities and difficulties of
34
After the
regulating greenhouse gases under the CAA.
30.
Massachusetts, 549 U.S. at 528-29.
31.
Id.
32.
42 U.S.C.S. § 7604(a) (LexisNexis 2008).
33.
Juliet Eilperin, EPA E-Mail Concluded Global Warming Endangers Public
Health, Senator Says, WASH. POST, July 25, 2008, at A19.
34.
See, e.g., Regulating Greenhouse Gas Emissions Under the Clean Air Act, 73
Fed. Reg. at 44,354.
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Supreme Court decision in Massachusetts, EPA staffers began
developing a framework for regulating greenhouse gases under
the CAA.
The result is the previously mentioned ANPR
published by the EPA on July 11, 2008, a document over 500
35
pages long. Typically, an ANPR published by the EPA is merely
a few pages long. Analyzing the difficulties and complexities of
regulating greenhouse gas emissions under the CAA is beyond
the scope of this article. For now, it is sufficient to state that
regulating greenhouse gas emissions under the CAA is very
complicated, as evidenced by the substantial length of the ANPR.
IV. THE POTENTIAL PLAINTIFFS MAY NOT FILE THE THREATENED
LAWSUIT AT ALL
Because of the difficulties and complexities of actually
regulating greenhouse gas emissions under the CAA, it is
debatable whether the EPA should use the CAA as its primary
36
The CAA may even be a countertool for such regulations.
productive tool for regulation of greenhouse gas emissions
because Congress did not design the CAA’s regulatory framework
for such a purpose.37
The potential plaintiffs in this case are probably aware of
the difficulties of regulating greenhouse gas emissions under the
CAA. They may no longer insist on regulating greenhouse gas
emissions under the CAA if there are alternative federal
regulatory schemes for regulating greenhouse gases. Under the
Bush administration, which was reluctant to regulate
greenhouse gas emissions at all,38 suing to regulate greenhouse
gases under the CAA was one of the few available options for the
potential plaintiffs to pursue.
Ultimately, what the potential plaintiffs in this case
probably want is an effective federal regulatory scheme to deal
with the threat of climate change and curb greenhouse gas
emissions. In the absence of an effective federal regulatory
scheme for greenhouse gas emissions under the Bush
administration, the plaintiffs’ threatened lawsuit and other
similar lawsuits under the CAA are a part of a strategy to force
35.
Id.
36.
See Michael Northrop, Clean Air Jump-Start, ENVTL. FIN., Oct. 2008, at 19.
37.
See Jonathan H. Adler, Warming Up to Climate Change Litigation, 93 V A. L.
REV.
IN
BRIEF
63,
69-72
(2007),
available
at
http://www.virginialawreview.org/inbrief/2007/05/21/adler.pdf.
38.
Sheryl Gay Stolberg, Bush Proposes Goals on Greenhouse Gas Emissions,
NYTIMES.COM,
June
1,
2007,
http://www.nytimes.com/2007/06/01/washington/01prexy.html.
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some form of federal action on climate change. The plaintiffs
may not have found it necessary to file the lawsuits, if the Bush
administration had dealt with the climate change threat
effectively and created alternatives to the CAA for climate
change regulation.
President Barack Obama stated his plan to push for such
federal climate change regulations prior to being sworn in as
39
President. Since then, he has maintained his support for a
federal climate change policy.40 The President’s regulatory
agenda on climate change has the legislative support of the
41
Furthermore, under the
Democratic majority in Congress.
Obama administration, the EPA is now preparing to initiate
regulation of greenhouse gas emissions under the CAA.42 Given
the changing political landscape in Washington, D.C., and the
increasing likelihood of future federal regulations for greenhouse
gas emissions, the potential plaintiffs in this case may never file
their threatened lawsuit.
If the potential plaintiffs in this case expect President
Obama to establish a federal climate change policy quickly, they
probably will abandon or place a temporary hold on their current
and planned lawsuits against the EPA for CAA greenhouse gas
regulations. In fact, the potential plaintiffs have not yet initiated
the threatened lawsuit, even though the 180-day notice period
already passed.43 As long as the plaintiffs are confident that
alternative and effective federal regulations will be in place to
deal with the threat of climate change soon, they have no reason
to file the threatened lawsuit against the EPA now.
Jaw-Tyng Hwang
39.
John M. Broder, Obama Affirms Climate Change Goals, NYTIMES.COM, Nov. 18,
2008, http://www.nytimes.com/2008/11/19/us/politics/19climate.html.
40.
John M. Broder, Obama, Who Vowed Rapid Action on Climate Change, Turns
More Cautious, N.Y. TIMES, Apr. 11, 2009, at A10.
41.
See John M. Broder, Democrats Unveil Climate Bill, N.Y. TIMES, Apr. 1, 2009, at
A19.
42.
Juliet Eilperin, EPA Presses Obama to Regulate Warming Under Clean Air Act,
WASH. POST, Mar. 24, 2009, at A01.
43.
E-mail from Susan L. Durbin, Deputy Attorney Gen., Cal. Dep’t of Justice, to
author (Apr. 15, 2009) (on file with author); E-mail from Martin Wagner, Attorney,
Earthjustice, to author (Apr. 15, 2009) (on file with author).